723 S.E.2d 409
W. Va.2012Background
- DHHR petitioned Jan. 19, 2011, alleging Ashton M. was abused/neglected by Michelle M. and Terry H. and sought emergency custody.
- Ashton M. reported ongoing abuse by Terry H.; Michelle M. admitted some improper conduct and failure to protect.
- Preliminary hearing Feb. 2–3, 2011 placed Ashton M. in DHHR custody; adjudicatory hearing Feb. 18 found abuse/neglect.
- Dispositional hearing Mar. 11, 2011 resulted in termination of Michelle M.’s parental rights despite DHHR’s recommendation to terminate only custodial rights.
- Circuit court’s March 31, 2011 order terminated parental rights; Michelle M. appealed challenging Rule 34 compliance and consideration of Ashton M.’s wishes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the prosecutor act improperly by not recommending only custodial rights? | Michelle M. asserts Prosecutor failed to advocate DHHR’s preference. | DHHR’s position was that only custodial rights should be terminated; no improper advocacy. | Prosecutor did not act inappropriately; DHHR’s position was appropriately represented. |
| Did the circuit court comply with Rule 34 by handling the case plan? | Rule 34(d) required a revised plan and new disposition if the plan was rejected. | Court implicitly accepted DHHR’s plan and discharged without a revised plan. | Reversible error for failure to follow Rule 34; remand for revised plan and hearing. |
| Did the court adequately consider Ashton M.’s wishes regarding termination of parental rights? | Code requires considering the child’s wishes for termination of parental rights. | Court did consider wishes via guardian ad litem and maintained post-termination visitation. | Court failed to determine/consider Ashton M.’s wishes regarding parental rights; remand with consideration of wishes. |
Key Cases Cited
- In re Edward B., 210 W.Va. 621, 558 S.E.2d 620 (2001) (W.Va. 2001) (Rule 34 process requires remand if substantially disregarded)
- In re Jessica G., 226 W.Va. 17, 697 S.E.2d 53 (2010) (W.Va. 2010) (Child’s wishes must be considered; remand if process not followed)
- State ex rel. Diva P. v. Kaufman, 200 W.Va. 555, 490 S.E.2d 642 (1997) (W.Va. 1997) (DHHR-prosecutor relationship in civil abuse/neglect actions)
- In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1996) (W.Va. 1996) (Post-termination visitation concept introduced)